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NLRB judge rescues the Red Cross . . . while also finding that certain employment policies crossed the line

In yet another example of the NLRB’s attempt to find a bogeyman lurking in every corner, the NLRB’s Acting General Counsel recently alleged that the familiar American Red Cross brochure entitled “You Request Our Mission . . . Please Respect Our Trademark” violated the National Labor Relations Act. See American Red Cross Blood Services, Western Lake Erie Region, Case No. 08-CA-090132 (June 4, 2013). The brochure provides an interesting discussion of the history of the world famous Red Cross symbol, its frequent use by organizations other than the American Red Cross, its protection by the U.S. Patent and Trademark Office, a specific federal law making its misuse a crime (18 U.S.C. Sec. 706), and the fact that certain companies are permitted to use it because they were using it prior to 1905. The brochure is clearly designed to dissuade people from unauthorized and improper use of the Red Cross emblem. The NLRB’s Acting General Counsel, however, contended that the brochure interfered with the right of American Red Cross employees to use the symbol in conjunction with protected activity under the Act (think picket signs with a Red Cross incorporated into them). After a hearing, the judge initially presiding over the case would have none of it: “I find that when the . . . trademark policy is read as a whole, employees would reasonably understand that it is designed to protect the Respondent’s legitimate right to safeguard one of the most famous symbols in the world, rather than to interfere with Section 7 rights.”

In the same case, the NLRB’s Acting General Counsel claimed that numerous other American Red Cross employment policies were unlawful, and the judge agreed in a few cases: confidentiality rules (found to be unlawful); a solicitation and distribution policy (lawful); a rule about posting information in the break room (unlawful); a conflict of interest policy (lawful); a rule prohibiting “unsatisfactory conduct” (lawful); and a rule prohibiting work stoppages (unlawful) or slowdowns (lawful). One of these rulings was perhaps more interesting than the others. A confidentiality agreement signed by employees was deemed unlawful because “information relating to personnel matters” and “information relating to employees” were defined as categories of “confidential information.” This is not particularly surprising under the current state of the law. But the same agreement had also stated that it did not “deny any rights provided under the National Labor Relations Act to engage in concerted activity, including but not limited to collective bargaining.” The company argued that this “savings” provision, combined with the overall context of the confidentiality agreement, rendered the agreement lawful because no employee could reasonably believe the agreement prohibited employees from engaging in protected activity under the Act. The judge rejected this argument, concluding that a broad savings provision such as this is insufficient because employees could not be expected to know that, for example, the Act protects their right to discuss wages and other terms and conditions of employment and would therefore believe the broad prohibition on disclosing “information relating to employees” prevented them from doing so. In fact, this ruling also was not particularly surprising, given the state of the law. As a result, employers seeking to “save” confidentiality policies (or other policies) with a disclaimer should give careful consideration to how those savings provisions are written and whether, in fact, a savings provision is actually the best way to protect the policy from NLRB scrutiny.

In the end, it is perhaps heartening for employers to see that the judge rejected so many of the Acting General Counsel’s allegations. As noted, his findings that a few rules crossed the line were not particularly surprising. On the other hand, it is troubling that the employer had to expend the time and resources to defend so many policies in the first place. When the American Red Cross published its brochure about its trademark, surely it figured it was saving time and resources by educating people at the outset rather than having to enforce its trademark against violators. Little did it know that it would have to reallocate some of those resources to defending the brochure itself against attack by the NLRB.